Howey v Police

[2014] NZHC 2299

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000017 [2014] NZHC 2299

BETWEEN

JOSEPH OWEN FORD HOWEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 September 2014
Appearances:	B Farnan for Appellant R D Smith for Respondent
Judgment:	22 September 2014

ORAL JUDGMENT OF GENDALL J

[1]     The appellant Mr Howey appeals against his sentence of three months’ community detention,  80  hours’ community work  and  nine  months’ supervision imposed by Judge Phillips in the Dunedin District Court on 10 June 2014 with respect to a charge of driving with excess breath alcohol (under 20 years of age) and driving whilst disqualified.

[2]      Mr Howey appeals on grounds that the sentence Judge Phillips imposed was manifestly excessive.  Judge Phillips also disqualified Mr Howey from driving for a period of six  months but that aspect of the sentence, as  I understand  it, is not challenged in this appeal.

Background

[3]      On 24 February 2014 Mr Howie appeared in the Dunedin Youth Court and was disqualified from holding a drivers licence. At about 4:05 a.m. on 9 March 2014

Mr Howey was driving a car on Crombie Street in Gore.   When stopped by the

HOWEY v NEW ZEALAND POLICE [2014] NZHC 2299 [22 September 2014]

Police it was noticed that he was affected by alcohol.  He underwent a breath screen test which provided a positive result.   A subsequent evidential breath test gave a result  of 366  micrograms  of alcohol  per litre of breath.    Checks  by the police revealed that Mr Howey was a disqualified driver.  In explanation Mr Howey stated he was taking some friends home and thought he was not disqualified yet.

The District Court decision

[4]      In reaching his decision in the District Court Judge Phillips took into account that Mr Howey:

(a)       Was driving whilst disqualified;

(b)Had been disqualified from driving only 15 days before the current offending;

(c)       Had an excess breath alcohol level that was high for a young person; (d)      Declined to fully participate in the pre-sentence report process;

(e)       Was unmotivated to comply with interventions being put in front of him; and

(f)       Did not attend for the purposes of the alcohol and drug counselling report that Judge Phillips had required.

[5]      After taking these matters into account Judge Phillips then assessed sentence having regard to the purposes and principles of the Sentencing Act 2002 including:

(a)       Denunciation and deterrence; and

(b)      Rehabilitation.

[6]      Judge Phillips also took into account that Mr Howey’s mental health at the

time was not good.  He also accepted youth as a factor but determined that because

Mr Howey had so recently been disqualified from driving for an excess breath alcohol offence, denunciation and deterrence must prevail.

The legal principles on appeal

[7]      Section 250 Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court.  Section 250(2) provides:

(2)      The first appeal court must allow the appeal if satisfied that:

(a)      For any reason there is an error in the sentence imposed on conviction; and

(b)      A different sentence should be imposed.

[8]      The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.  Not every error in a sentence will provide the foundations for a successful appeal.  The types of error that are contemplated by s 250(2)(a) Criminal Procedure Act 2011 include:1

(a)      Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(b)The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(c)      The practical effect of preserving the previous approach is that the appeal  court  does  not  start  afresh  nor  simply  substitute  its  own opinion for that of the original sentencer.   Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.2    If there is an error of the requisite  character,  the  court  will  then  form  its  own  view  of  the

appropriate sentence.

1      Tutakangahau v R [2014] NZCA 279 at [26]-[36].

2      R v Shipton [2007] 2 NZLR 218 (CA) at [139].

(d)In assessing whether an alleged error is of the requisite character it will be helpful to consider whether the error is material.

(e)      Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence those concepts are long- standing and should continue to be utilised when considering s 250(2).

(f)      The  focus  in  sentence  appeals  remains  on  whether  the  sentence imposed is within range rather than the process by which the sentence was reached.  In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).

Analysis

[9]      Although the language Judge Phillips used in part of his sentencing notes could be viewed at one level as direct to the point of being incendiary, the end sentence he reached in my view is not out of proportion to other sentences for a second offence for driving with excess breath alcohol for a person under 20 years of age.

[10]     I have reached this conclusion in part based on a decision in this Court of Her Honour Ellis J in Robarts v Police.3   Although the offending in that case was more serious and involved more driving charges the basic principle of combining community detention, community work, intensive supervision, disqualification and reparation for a second offence for driving with excess breath alcohol for a person under 20 years of age was seen as appropriate.

[11]     I accept that Mr Howey does struggle with mental health issues however I do note the pre-sentence report, which stated:

Although Mr Howey presented as unmotivated to comply with a sentence of Community Work,  such  an imposition  would  have the  added  benefit  of allowing him access to the training programmes currently available via the

3      Robarts v Police [2014] NZHC 666.

Work and Living Skills component of this sentence.  This would add a small measure of routine and structure to his lifestyle.

[12]     Therefore, in my view the purposes of rehabilitation for Mr Howey will be adequately met by the imposition of community work.  In the circumstances of this case generally I am satisfied it could be said that Judge Phillips has imposed the least restrictive outcome appropriate for Mr Howey.

Conclusion

[13]     Accordingly this appeal is dismissed.

...................................................

Gendall J

Solicitors:

Farnan Garthwaite Law, Dunedin

RPB Law, Dunedin